93 Decision Citation: BVA 93-10137
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-50 512 ) DATE
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THE ISSUES
1. Entitlement to service connection for a chronic acquired
back disorder.
2. Entitlement to service connection for a claimed left
ankle disorder.
3. Entitlement to service connection for a claimed foot
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Ripley P. Schoenberger, Counsel
INTRODUCTION
The veteran served on active duty from August 1966 to August
1969.
This case was previously before the Board. However, the
case was remanded in August 1992 for due process reasons.
The remand contains the administrative history of the case
to this point. A supplemental statement of the case was
issued in October 1992. The case was again received at the
Board and docketed for appellate review in January 1993.
Throughout his appeal the veteran has been represented by
the Disabled American Veterans to whom the file was referred
in January 1993. That organization submitted additional
written arguments to the Board in January 1993, and the case
is now ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that during service he
participated in a parachute jump. He landed hard and
injured his feet, ankles and back. Since that incident he
has had problems with his feet, ankles and back. After
service he reinjured his back on two occasions.
Nevertheless, the post service injuries only aggravated his
original back injury. Therefore, because his current
problems are due to the injuries he sustained in service,
his appeal should be allowed.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the claim for service connection for a back
disorder, and that the appellant has not met the initial
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that his claims for
service connection for an ankle disorder and a foot disorder
are well grounded.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
regional office.
2. The one incident of low back pain in service was acute
and transitory and is unrelated to any current back
pathology.
3. The presence of a left ankle disorder is not currently
demonstrated.
4. The presence of a foot disorder is not currently
demonstrated.
CONCLUSIONS OF LAW
1. A chronic back disorder was neither incurred in nor
aggravated by military service. 38 U.S.C.A. §§ 1110, 5107
(West 1991); 38 C.F.R. § 3.303(b) (1992).
2. Evidence of a well-grounded claim for service connection
for a left ankle disorder has not been presented.
38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303(b)
(1992).
3. Evidence of a well-grounded claim for service connection
for a foot disorder has not been presented. 38 U.S.C.A. §§
1110, 5107 (West 1991); 38 C.F.R. § 3.303(b) (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The threshold question to be answered is whether the veteran
has presented a well-grounded claim for service connection
for the disabilities at issue. If not, his claim must fail,
and there is no further duty to assist him because
additional development would be futile. 38 U.S.C.A.
§ 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Tirpak
v. Derwinski, 2 Vet.App. 609 (1992). As will be explained
below, we find that the claims for service connection for a
left ankle disorder and a foot disorder are not well
grounded, and there is no further duty to assist the veteran
with regard to either of these issues.
However, we find that the veteran's claim for service
connection for a back disorder is "well grounded" within the
meaning of 38 U.S.C.A. § 5107(a). That is, we find that
this claim is plausible. We are also satisfied that all
relevant facts have been properly developed with regard to
this issue. We note that the veteran's service medical
records and private medical reports dated in 1978 and 1981
have been associated with the claims folder, and that the
veteran testified that he did not seek medical attention in
the years immediately following his release from service.
There is no indication that there are additional relevant
records which have not been obtained. Consequently, no
further assistance to the veteran is required in order to
comply with the duty to assist mandated by 38 U.S.C.A. §
5107(a).
I. Back Disorder
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by wartime
service. 38 U.S.C.A. § 1110.
Continuity of symptomatology is required where the condition
noted during service is not, in fact, shown to be chronic or
where the diagnoses of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b).
The service medical records show that in August 1968 the
veteran said that he hurt his back lifting a box. The
impression was low back strain. On the discharge
examination, performed in July 1969, he did not complain of
back pain and no abnormality of the back was noted. The
private medical reports dated in 1978 show that the veteran
gave a medical history of injuring his back at work. He
reported that he was pulling lumber from the belt to stack
it, and when he turned, he felt a popping sensation in his
lower back. The following day he was unable to stand
without pain and unable to sit without pain. After
examination, the diagnosis was acute low back strain. X-ray
films were interpreted to show bilateral spondylolysis at
the fifth lumbar level with early Grade I spondylolisthesis
of the fifth lumbar level on the first sacral segment.
The private medical reports dated in 1981, show that the
veteran reinjured his back at work. He was "pulling" lumber
and noticed lower back pain. After workup the diagnosis was
low back strain with underlying fifth lumbar spondylolysis.
The RO held that the back injury sustained in service was
acute and transitory and that spondylolysis was a congenital
or developmental condition for which service connection
could not be allowed.
Statements from the veteran and two of his relatives relate
in substance, that from 1969 to 1978, the veteran complained
of back pain. At his hearing, the veteran testified that he
injured his back in service picking up generators and
boxes. However, the veteran indicated that the first time
he had severe back problems was following his accident in
the private sector. He also testified that he did not go to
any doctors following his discharge from service until after
the work-related back injury in 1978. Consequently, we
conclude that the evidence does not show a chronic back
disorder in service or continuity of symptomatology from
1969 to 1978. The preponderance of the evidence, including
the service medical records which are negative for a chronic
back disorder, the fact that a chronic back disorder was not
shown until many years after service following a
work-related injury, and the absence of a medical opinion
linking the current disability with any incident or event in
service, is against the grant of service connection for a
back disorder. Therefore, since the veteran has not
submitted new and material evidence, his claim is not
reopened.
II. Claimed Disorders of the Left Ankle
and Feet
As noted above, we find that the claims for service
connection for a left ankle disorder and a foot disorder are
not well grounded, and there is no further duty to assist
the veteran in this portion of his appeal.
The United States Court of Veterans Appeals has stated the
following:
"Congress specifically limits entitlement
for service-connected disease or injury to
cases where such incidents have resulted
in a disability. See 38 U.S.C. § 1110
(formerly § 310). In the absence of proof
of a present disability, there can be no
valid claim." Brammer v. Derwinski, 3
Vet.App. 223, 225 (1992).
The service medical records show that the veteran was seen
in February 1968 for a left ankle sprain following a
parachute jump. A tender spot was noted on the lateral
dorsum of the foot. An Ace bandage was applied. The
subsequent service medical records, including the discharge
examination, are devoid of any complaints or clinical
findings referable to the left ankle or feet. Moreover,
when the veteran was seen at private hospitals in 1978 and
1981, no abnormality of the left ankle or feet was reported.
Consequently, we conclude that the left ankle sprain and the
tender spot on the foot noted in service were acute and
transitory and did not develop into chronic disability.
At his hearing the veteran testified that he continued to
make parachute jumps after he injured his left ankle, and
that his left ankle "held up." However, he also stated that
he continued to experience pain in his left ankle and feet.
Nevertheless, he has submitted no medical evidence that
shows that he has a disability of his left ankle or feet.
Thus, we have no showing of a left ankle or foot disability
in service and a left ankle or foot disability is not
currently demonstrated. Given these facts, we conclude that
the veteran has not submitted evidence of a well-grounded
claim. Thus, we must deny this portion of his appeal.
ORDER
Service connection for a back disorder is denied.
Service connection for a left ankle disorder is denied.
Service connection for a foot disorder is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
GARY L. GICK H. STERLING, M.D.
*
(Member Temporarily Absent)
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.